# C_2019328EN.01000501.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/5 |
| --- | --- | --- | --- |

30.9.2019

EN

Official Journal of the European Union

C 328/5

---

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 29 May 2019 — Irideos S.p.A. v Poste Italiane S.p.A.

(Case C-419/19)

(2019/C 328/06)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Irideos S.p.A.

Defendant: Poste Italiane S.p.A.

Questions referred

| 1. | Should the company Poste Italiane s.p.a., on the basis of characteristics set out above, be classified as a ‘body governed by public law’ within the meaning of Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU directives (2014/23/EU, (1) 2014/24/EU (2) and 2014/25/EU) (3)? |
| --- | --- |

1.

Should the company Poste Italiane s.p.a., on the basis of characteristics set out above, be classified as a ‘body governed by public law’ within the meaning of Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU directives (2014/23/EU, (1) 2014/24/EU (2) and 2014/25/EU) (3)?

| 2. | Is that company required to conduct competitive tendering procedures only when awarding contracts which relate directly to activities in the special sectors referred to in Directive 2014/25/EU, under which the very nature of a body governed by public law must be regarded as being contained in the rules laid down in Part II of the Public Procurement Code — whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not, strictly speaking, connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU (judgments of the Supreme Court of Cassation, ruling as combined chambers, No 4899 of 2018, cited above and, for the last part, judgment of the Council of State, sitting in plenary session, No 16 of 2011, as cited above)? |
| --- | --- |

2.

Is that company required to conduct competitive tendering procedures only when awarding contracts which relate directly to activities in the special sectors referred to in Directive 2014/25/EU, under which the very nature of a body governed by public law must be regarded as being contained in the rules laid down in Part II of the Public Procurement Code — whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not, strictly speaking, connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU (judgments of the Supreme Court of Cassation, ruling as combined chambers, No 4899 of 2018, cited above and, for the last part, judgment of the Council of State, sitting in plenary session, No 16 of 2011, as cited above)?

| 3. | With regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, is that company, where it meets the requirements for being classified as a body governed by public law, subject to the general Directive 2014/24/EU (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities in competitive market conditions, having developed from when it was originally established, as may be inferred from the judgment of 10 April 2008, C-393/06, Ing, Aigner, since Directive 2014/24/EC precludes any other interpretation for contracts concluded by contracting authorities, bearing in mind that recital 21 and Article 16 of Directive 2014/23/EU set out a mere presumption for the purpose of precluding undertakings which operate in normal market conditions from being deemed bodies governed by public law, although it is clear that, on the basis of those provisions read together, priority consideration is given to the stage at which the body was established, where that body is intended to meet ‘needs in the general interest’ (which continue to exist in the present case)? |
| --- | --- |

3.

With regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, is that company, where it meets the requirements for being classified as a body governed by public law, subject to the general Directive 2014/24/EU (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities in competitive market conditions, having developed from when it was originally established, as may be inferred from the judgment of 10 April 2008, C-393/06, Ing, Aigner, since Directive 2014/24/EC precludes any other interpretation for contracts concluded by contracting authorities, bearing in mind that recital 21 and Article 16 of Directive 2014/23/EU set out a mere presumption for the purpose of precluding undertakings which operate in normal market conditions from being deemed bodies governed by public law, although it is clear that, on the basis of those provisions read together, priority consideration is given to the stage at which the body was established, where that body is intended to meet ‘needs in the general interest’ (which continue to exist in the present case)?

| 4. | In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, must the concept of ‘a functional link’, in connection with a service which is specifically in the public interest, be interpreted in a non-restrictive manner (as has been held to date in the national case-law, in accordance with judgment No 16 of 2011 of the Council of State, sitting in plenary session), at odds, in that regard, with the principles set out in recital 16 and Articles 6 and 13 of Directive 2014/25/EU, which refer to the concept of the ‘intended purpose’ of one of the activities governed by the Public Procurement Code for the purpose of identifying the applicable rules? It must therefore be clarified whether all the operational activities in a relevant special sector can be ‘intended’ for that sector — including under the less stringent binding conditions specific to excluded sectors, in accordance with the intentions of the contracting authority (including contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices, or other forms of use of the latter if intended as a service for customers) while only the ‘unrelated’ activities remain effectively privatised, activities which the public or private entity can carry out freely in entirely different areas, exclusively under the rules of the Civil Code and the jurisdiction of the ordinary courts. (It is true that, for present purposes, the banking services carried out by Poste Italiane are an example of this type but the same cannot be said for the supply and use of electronic communication tools, where they are used to cover the scope of activities of the Group, even though they are particularly necessary for the banking activity.) However, it seems necessary to point out the ‘imbalance’ prompted by the current restrictive interpretation, which introduces completely different rules to the management of comparable or adjacent sectors, for the award of works or service contracts: on one hand, the detailed safeguards imposed by the Public Procurement Code for the purpose of identifying the other party to the contract, and on the other hand the complete freedom to negotiate on the part of the contractor, which is free to make agreements solely in accordance with its own economic interests, without any of the transparency guarantees required for the special and excluded sectors. |
| --- | --- |

4.

In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, must the concept of ‘a functional link’, in connection with a service which is specifically in the public interest, be interpreted in a non-restrictive manner (as has been held to date in the national case-law, in accordance with judgment No 16 of 2011 of the Council of State, sitting in plenary session), at odds, in that regard, with the principles set out in recital 16 and Articles 6 and 13 of Directive 2014/25/EU, which refer to the concept of the ‘intended purpose’ of one of the activities governed by the Public Procurement Code for the purpose of identifying the applicable rules? It must therefore be clarified whether all the operational activities in a relevant special sector can be ‘intended’ for that sector — including under the less stringent binding conditions specific to excluded sectors, in accordance with the intentions of the contracting authority (including contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices, or other forms of use of the latter if intended as a service for customers) while only the ‘unrelated’ activities remain effectively privatised, activities which the public or private entity can carry out freely in entirely different areas, exclusively under the rules of the Civil Code and the jurisdiction of the ordinary courts. (It is true that, for present purposes, the banking services carried out by Poste Italiane are an example of this type but the same cannot be said for the supply and use of electronic communication tools, where they are used to cover the scope of activities of the Group, even though they are particularly necessary for the banking activity.) However, it seems necessary to point out the ‘imbalance’ prompted by the current restrictive interpretation, which introduces completely different rules to the management of comparable or adjacent sectors, for the award of works or service contracts: on one hand, the detailed safeguards imposed by the Public Procurement Code for the purpose of identifying the other party to the contract, and on the other hand the complete freedom to negotiate on the part of the contractor, which is free to make agreements solely in accordance with its own economic interests, without any of the transparency guarantees required for the special and excluded sectors.

| 5. | Finally is the launch of a public procurement procedure under the Public Procurement Code — using forms of publicity determined at both national and EU level — relevant for the purposes of identifying the intended purpose of the contract, where it is linked to the relevant special sector, within the meaning of the broad concept of ‘a functional link’, referred to in the above question No 4, or — in the alternative — can an objection concerning the jurisdiction of the administrative courts, raised by the entity which launched the tendering procedure or by the parties which were successful in the procedure, be regarded as an abuse of rights within the meaning of Article 54 of the Charter of Fundamental Rights, in so far as it is conduct which — while not being capable, as such, of affecting the allocation of jurisdiction (see judgment of the Council of State, sitting in plenary session, No 16 of 2011) — is relevant at least for the purposes of compensation and legal expenditure, since it is detrimental to the legitimate expectations of the participants in that tendering procedure where they are unsuccessful and applicants in legal proceedings? |
| --- | --- |

5.

Finally is the launch of a public procurement procedure under the Public Procurement Code — using forms of publicity determined at both national and EU level — relevant for the purposes of identifying the intended purpose of the contract, where it is linked to the relevant special sector, within the meaning of the broad concept of ‘a functional link’, referred to in the above question No 4, or — in the alternative — can an objection concerning the jurisdiction of the administrative courts, raised by the entity which launched the tendering procedure or by the parties which were successful in the procedure, be regarded as an abuse of rights within the meaning of Article 54 of the Charter of Fundamental Rights, in so far as it is conduct which — while not being capable, as such, of affecting the allocation of jurisdiction (see judgment of the Council of State, sitting in plenary session, No 16 of 2011) — is relevant at least for the purposes of compensation and legal expenditure, since it is detrimental to the legitimate expectations of the participants in that tendering procedure where they are unsuccessful and applicants in legal proceedings?

---

(1)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(2)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

(3)  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

---